IN RE: JOHN N. BOKENFOHR
Office of Disciplinary Counsel ("ODC") seeks review
of an order of the disciplinary board that the formal charges
against respondent, John N. Bokenfohr, be dismissed.
stated, this case involves the obligations of an attorney who
learns his client has failed to produce evidence in response
to a search warrant in an ongoing criminal investigation.
Upon learning the evidence was in his client's
possession, respondent counseled his client on several
occasions to turn the evidence over to the authorities.
Respondent also informed his client that he was likely to be
charged with obstruction of justice. Respondent was
ultimately successful in persuading his client to allow him
to release the evidence to the authorities; however, this
release occurred approximately three months after respondent
learned of the existence of the evidence, during which time
respondent had an expert retrieve, preserve, and copy the
formal hearing, the hearing committee made a finding that
respondent was credible when he testified that he knew he
would be bound to inform the court and the prosecutor of the
existence of the evidence if he could not convince his client
to turn over the evidence. The committee also accepted
respondent's testimony that he always believed his client
would comply with his legal advice, which the client
ultimately did. Based on these findings, the committee
recommended the charges be dismissed. The disciplinary board
found no manifest error in the committee's findings and
also recommended the charges be dismissed.
argument to this court, the ODC focuses on the three-month
period between the time respondent learned of the evidence
and ultimately released it to the authorities. The ODC argues
respondent took no action whatsoever to force his client to
release the evidence sooner. The ODC contends respondent
should have advised his client that he (respondent) would be
compelled, as an officer of the court, to go to the
authorities if the client did not turn over the evidence.
According to the ODC, the delay in production created a
possibility that the evidence might be damaged or lost and
potentially impaired the prosecution.
primary provision of the Rules of Professional Conduct at
issue in this case is Rule 3.3(b), which provides:
A lawyer who represents a client in an adjudicative
proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to the
tribunal. [emphasis added].
board observed, this rule does not contain any temporal
elements, but instead focuses on the reasonableness of the
remedial measures taken by the lawyer. The hearing committee
made a factual finding that respondent's actions were
reasonable under the circumstances presented.
on our review of the record, we cannot say the hearing
committee's factual findings, which were based on
credibility determinations, are clearly wrong. In reaching
this conclusion, we make it clear that the determination of
whether a lawyer has fulfilled the duties imposed under Rule
3.3(b) will turn on the specific facts presented in each
individual case, and our ruling today should not be
considered as standing for any proposition beyond the stated
holding. We caution members of the bar to be very sensitive
to their obligations under this rule, as any breach of these
duties can have significant adverse impacts on the
administration of justice. However, under the specific facts
of the case presented, we find the board correctly concluded
respondent did not breach his ethical obligations.
reasons assigned, it is ordered that the formal charges
against respondent be and hereby are dismissed.